McHenry's Appeal , 61 Pa. 432 ( 1869 )

The opinion of the court was delivered, July 6th 1869, by

Williams, J.

If the sheriff’s sale of the mortgaged premises did not vest in Winslow a valid title as against Eallon, then McHenry, his vendee, is entitled to an account of the rents and profits of the land, and a conveyance thereof on payment of the residue of the purchase-money, but not otherwise. When he purchased from Eallon he had constructive notice of Winslow’s title, and could take no greater interest in the mortgaged premises than Eallon himself had. Did Winslow then take an absolute title to the mortgaged premises under the sheriff’s sale, or did he take the title, subject to the payment of the debt, in trust for Eallon ? The scire facias was not issued on the mortgage until more than a year after it became due, and all the proceedings, including the judgment, execution and sale thereon, were regular and in strict conformity with the requirements of the statute and the uniform practice in such cases. It is not alleged that there was any irregularity or defect in the proceedings, or that the judgment was taken for an amount greater than the sum actually due. It follows that Winslow took a good title to the premises unless his relations to Eallon were such as to render the sale fraudulent or voidable. What, then, were the relations subsisting between them at the date of the sale, and were they such as to prevent Winslow from taking a valid title to the land for his own use ? Had he a legal right to institute proceedings on the mortgage at the time and in the manner he did; or was he bound to account for the rents and profits of the premises before proceeding adversely on the mortgage? The appellant contends that he was the lessee of the mortgaged premises, and, therefore, that he had no right to proceed on the mortgage until he had first accounted for the rent which he' had stipulated to pay. But the evidence shows that the lease was terminated on the 1st of January 1858, prior to the institution of the suit on the mortgage, and that Winslow had fully accounted for the rent up to that date. The appellant further contends that he was a co-tenant with Fallon of the lands bound by the lien of the mortgage, and that he was in possession of the premises as co-tenant and mortgagee, and in the receipt of profits arising from the sale of timber and stumpage, for which he was bound to account and apply to the extinguishment of the debt, before taking adverse proceedings on the mortgage. It is true that Winslow was a co-tenant with Fallon, but there is no evidence that he was in the actual occupancy of the premises either for the purpose of residence or cultivation. They consisted chiefly of uncultivated woodland, or forests of white-pine, and if Winslow cut no timber and sold no stumpage, as the court below found, then he received no profits from the estate, which they held as tenants in common, for which he was bound to account. There is some evidence that large quantities of timber were cut on the tracts included in the mortgage, in the years 1858 and 1859, but Winslow, in his answer, denies that any timber was cut thereon during either of these years, and the court was of the opinion that the timber mentioned in the depositions of appellant’s witnesses, was cut on that part of “ Warrant No. 5 ” which belonged wholly to the defendant, Wins-low. The witnesses testify that they are acquainted with the tracts, but they do not designate or distinguish them in any way, nor indicate the tract on which the timber was cut to which they refer. As Winslow admits that he cut a large quantity of timber on his portion of “Warrant No. 5,” and positively denies that he cut any timber on either of the tracts included in the mortgage, we should not be justified in setting aside the finding of the court below on evidence so vague and unsatisfactory. The burden of showing that Winslow cut or sold timber for w7hich he is bound to account was on the appellant, and in order to overcome his positive denial in response to the allegations in the appellant’s bill, the fact should have been established by clear and satisfactory evidence. There is, then, no sufficient evidence that Winslow had any other possession of the mortgaged premises than that which followed his legal title, and as Fallon was part owner of the lands, he had, by virtue of his legal title, the same possession that Winslow had. Nor is there any evidence that he was acting as the agent of Fallon at the date of the sheriff’s sale, in the supervision, care and management of the lands. It is true that, under Fallon’s letter of the 10th May 1859, he was authorized to rent the saw-mill, with the right to cut timber for one year, and to make any arrangement for the cultivation of the farm lands on shares or otherwise that he might think advisable, but there' is no evidence that he accepted the authority, or that he attempted to act under it. Nor can such agency be inferred from the fact that he paid the taxes assessed on the lands of which he was part owner, even if it had been shown that he paid them at the request of Fallon and upon his promise to repay him his share. The performance of a particular service in pursuance of a special request is no evidence of a general agency, even as it respects strangers, much less as between the parties themselves.

Is there anything in his relation to Fallon as co-tenant of the land bound by the lien of the mortgage which would prevent him from instituting proceedings thereon without first giving notice of his intention, or which made it his duty to give Fallon personal notice of the proceedings after they were commenced ? If Fallon failed to pay the mortgage-debt at maturity, why were not the same remedies open to him to enforce its payment as if he had not been his co-tenant? We can discover nothing in the relation which ought to modify or affect his rights or remedies, and which should prevent him from proceeding on the mortgage in the same manner and with the same effect as if no such relation had subsisted between them. And for the same reason we are of the opinion that Winslow was under no imperative legal obligation to give Fallon personal notice that he had commenced proceedings on the mortgage. His failure to give him such notice may have been inconsistent with the friendly relations existing between them; yet if he was under no legal obligation to give him personal notice, then the duty, though morally binding in the forum of conscience, is not such as can be enforced by the court. He gave all the notice the law requires, and there is no evidence that he was guilty of any fraudulent concealment or misrepresentation. If Fallon has any reason to complain of his conduct it is of his silence, and not of any positive act done with the intent of misleading him. Nor was there any such haste in the proceedings as would indicate an intention on the part of Winslow to take any undue advantage of Fallon. The property was not exposed to sale until about a year after the judgment had been obtained, and the sheriff’s deed was not acknowledged until three months thereafter ; and the evidence shows that Fallon was informed that the property had been advertised for sale just before or soon after it took place, and in ample time to have prevented the consummation of the sale, if he had been disposed to prevent it. If he had notice of its advertisement, as he admits that he had, it was his duty to have prevented the consummation of the sale by the payment of the mortgage-debt before the acknowledgment of the sheriff’s deed. And if he did not, it was his own fault; and as the appellant stands in his shoes, he must bear the consequences of his laches. Eallon knew that the debt was due, and he was informed by Winslow that he should look to the land for its payment, and yet there is not a particle of evidence that he ever offered to make any arrangement whatever for the payment of the mortgage until long after the sheriff’s sale. Under all the facts of this case we think the court below was fully justified in dismissing the bill.

Appeal dismissed at the cost of the appellant.

Read, J., dissented.